The Marine, the Child Pornography and the Unallocated Space

This post examines an opinion recently issued by the U.S.Navy-Marine Corps Court of Criminal Appeals:  U.S. v. Kamara, 2015 WL 2438269 (2015) (per curiam). The opinion begins by explaining that a

panel comprised of both officer and enlisted members sitting as a general court-martial convicted [Kamara], contrary to his pleas, of two specifications of possession of child pornography, in violation of Article 134, Uniform Code of Military Justice, 10 U.S. Code § 934. The members sentenced [Kamara] to confinement for ten years and a dishonorable discharge. The convening authority (CA) approved the sentence as adjudged and ordered it executed.

U.S. v. Kamara, supra.

In his appeal, Kamara challenged his conviction, alleging “three assignments of error”.  U.S. v. Kamara, supra.  If you are interested, you can find the Manual for Courts-Martial – United States, here.  On appeal, he raised “three assignments of error”, i.e., he argued that the proceeding which resulted in his conviction was flawed due to the impact of one or more of those issues. U.S. v. Kamara, supra.  The three issues were

     1.     that [Kamara’s] conviction should be overturned because a general verdict cannot be upheld when the evidence offered to support the charge also includes constitutionally protected content; 2.     that [Kamara’s] conviction for possessing 14 DVDs containing child pornography cannot be sustained without amendment since one of the DVDs is not viewable; and,

3. that the files recovered from `unallocated space’ are legally and factually insufficient to sustain [his] conviction.

U.S. v. Kamara, supra.

The Court of Appeals addressed each of his arguments, in the order given above. U.S. v. Kamara, supra.  It began its analysis by explaining how the court-martial arose:

On 8 November 2012, an agent of the Naval Criminal Investigative Service (NCIS) executed a valid search authorization in [Kamara’s] workplace and residence. He seized a laptop computer, an external hard drive labeled `G drive,’ a tower computer, an Iomega external hard drive, and several thumb drives. These devices contained video clips and images of both adults and children engaged in sexual activity. The NCIS agent also retrieved a safe from [Kamara’s] residence; inside were 14 DVDs allegedly containing child pornography.

The contraband uncovered in [his] possession depicted children as young as five engaging in oral, vaginal, and anal sex, as well as digital and object penetration of their vaginas and anuses. While some of the evidence also depicted adult pornography and nudist images, the agent estimated at trial that approximately 70% of the images found were child pornography. . . .

Specification 1 of the Charge was based upon images allegedly found on the `external hard drives, computers, and thumb drives.’ Charge Sheet. The `G drive’ contained these images as saved files. The images found on the other devices were located in `unallocated space.’ The second specification concerned the 14 DVDs. The members received all of the electronic evidence, but it is unknown which DVDs or CDs they viewed during deliberations. One of the DVDs, Prosecution Exhibit 16, will no longer open for viewing.

Prior to closing arguments, the military judge properly instructed the members, inter alia, on the definitions of `child pornography,’ `sexually explicit conduct,’ and `lascivious.’ . . . He instructed that the evidence must go beyond mere child nudity, and must be `sexually suggestive’ and `designed to elicit a sexual response in the viewer.’ . . . During argument, trial counsel acknowledged that there was adult pornography mixed in with the child pornography, and urged the members to appropriately distinguish between the two when reaching a decision. . . . The members returned a general verdict of guilt without specifically indicating which pieces of evidence they relied upon to reach their decision.

U.S. v. Kamara, supra.  The opinion then notes that “[o]ther facts necessary to address the assigned errors will be provided” later in the opinion.  U.S. v. Kamara, supra.  The court then went on to analyze each of the arguments Kamara raised on appeal, in the order given above.  U.S. v. Kamara, supra.

It began with the issue of the general verdict.  U.S. v. Kamara, supra.  The court began its analysis of this issue by noting that

[r]elying on U.S. v. Barberi, 71 M.J. 127 (U.S. Court of Appeals for the Armed Forces 2012), [Kamara] contends that his conviction should be overturned because the members returned a general verdict where the evidence presented contained both child pornography and constitutionally protected material (adult pornography and non-prurient nudist pictures). He claims that, given the possibility the members may have based their verdict on constitutionally protected images, this court cannot affirm the conviction.

We may have found merit in this argument if Barberi was still an accurate reflection of the law. In U.S. v. Piolunek, 74 M.J. 107, (U.S. Court of Appeals for the Armed Forces 2015), the Court of Appeals for the Armed Forces (CAAF) held that Barberi `was wrongly decided.’ In Piolunek, which, like the instant case, dealt with a general verdict where the evidence contained both proscribed and constitutionally protected material, the CAAF `recognize[d] that properly instructed members are well suited to assess the evidence and make the . . . factual determination . . . whether an image does or does not depict the genitals or pubic region, and is, or is not, a visual depiction of a minor engaging in sexually explicit conduct.’ U.S. v. Piolunek, supra. Furthermore, `[A]bsent an unconstitutional definition of criminal conduct, flawed instructions, or evidence that members did not follow those instructions. . .  there is simply no basis in law to upset the ordinary assumption that members are well suited to assess the evidence in light of the military judge's instructions.’ U.S. v. Piolunek

Here, the prosecution offered hundreds of images and videos to prove [Kamara] possessed child pornography. While there was some amount of constitutionally protected content mixed in with the contraband, there is no reason to second-guess the ability of the members to distinguish between the two when reaching a verdict, particularly when the record shows that the military judge instructed them properly and trial counsel cautioned the members to be careful in making the distinction. Accordingly, we are confident that the members were able to properly identify child pornography and distinguish it from other content.

U.S. v. Kamara, supra. 

The court then took up Kamara’s next argument, i.e., that his conviction could not be affirmed because one of the DVDs allegedly containing child pornography was not viewable.  U.S. v. Kamara, supra.  More precisely, it noted that

[a]lthough not styled as such, [Kamara’s] second [assignment of error] is a question of whether the record of trial is incomplete. This is a matter of law we review de novo. U.S. v. Henry, 53 M.J. 108 (U.S. Court of Appeals for the Armed Forces 2000). `A substantial omission renders a record of trial incomplete and raises a presumption of prejudice that the Government must rebut.  U.S. v. Henry, supra.

U.S. v. Kamara, supra. 

It began its analysis by noting that Kamara claimed   that his conviction      

of Specification 1 cannot stand as it is based, in part, on files extracted from the unallocated space on the Iomega hard drive, and the Government failed to prove he knowingly possessed those files. We agree, but only to the extent the specification alleges knowing possession of child pornography images on any electronic device other than the `G drive’ external drive.                                                              

U.S. v. Kamara, supra. 

The Court of Criminal Appeals went on to explain that it reviews questions of

legal and factual sufficiency de novo. U.S. v. Winckelmann, 70 M.J. 403 (U.S. Court ofAppeals for the Armed Forces 2011). The test for legal sufficiency is whether any rational trier of fact could have found that the evidence met the essential elements of the charged offense, viewing the evidence in a light most favorable to the Government. U.S. v. Turner, 25 M.J. 324 (U.S. Court of Military Appeals 1987); U.S. v. Reed, 51 M.J. 559 (New MexicoCourt of Criminal Appeals 1999). . . . The test for factual sufficiency is whether we are convinced of [Kamara’s] guilt beyond a reasonable doubt, allowing for the fact that we did not personally observe the witnesses. U.S. v. Turner, supra.

U.S. v. Kamara, supra. 

The court then explained the factual basis of Kamara’s argument on this issue:

[a]t trial, the Government's expert testified she reviewed 25 images provided by the NCIS agent. Of those, 19 were in saved files on the appellant's `G drive’ external drive. The remaining six were located in unallocated space on the Iomega external drive. The expert also located possible images of child pornography in unallocated space on one thumb drive and the laptop computer.

Using evidence of search terms used on 18 September 2012, the expert was able to link the images on the `G drive’ to the laptop computer. She was also able to show that the `G drive’ and Iomega drives were at some point connected to the laptop. However, due to her inability to discern the filenames of the images in unallocated space on the Iomega drive, the expert could not say when or whether these files were accessed.

U.S. v. Kamara, supra. 

The court then took up the issue of the extent to which the evidence supported Kamara’s convictions.  U.S. v. Kamara, supra.  It began by explaining that the elements of

possessing child pornography, as charged in the present case, are: (1) that the accused knowingly and wrongfully possessed child pornography; and, (2) that under the circumstances, the conduct of the appellant was of a nature to bring discredit upon the armed forces. MANUALFOR COURTS–MARTIAL, UNITED STATES (2012 ed.), Part IV, ¶ 68b. The Government charged [Kamara] with possessing the child pornography in question `between on or about 7 October 2012 and on or about 8 November 2012.’ Charge Sheet.

U.S. v. Kamara, supra. 

It went on to explain, initially, that

[v]iewing the evidence in the light most favorable to the Government, we find that the testimony of the NCIS agent and the Government's computer forensic expert, as well as the images contained in Prosecution Exhibit 1, support a finding that [Kamara] knowingly possessed child pornography in files found on his `G drive’ external drive when it was seized on 8 November 2012. Thus, we find the evidence to be legally sufficient for the images on that electronic device.

U.S. v. Kamara, supra. 

It reached a different conclusion

with regards to images found on the other devices. The [U.S. Court of Appeals for the Armed Services] has recognized that `knowing possession’ as it relates to child pornography means `”to exercise control of something.”’ U.S. v. Navrestad, 66 M.J. 262, (2008) (quoting MANUAL FOR COURTS-MARTIAL Part IV, ¶ 37c2)). Here, the Government's expert testified she would be unable to view the files found in unallocated space without using some sort of forensic device.

U.S. v. Kamara, supra. 

The court also pointed out that the prosecution in this case presented

no evidence to show [Kamara] possessed or knew how to use such a forensic device. Thus, the existence of the images in unallocated space on the thumb drives, IOMEGA external drive and computers is, alone, legally insufficient to prove [he] exercised `dominion and control”’ over the files on the date NCIS seized these devices. See U.S. v. Kuchinski, 469 F.3d 853 (U.S. Court of Appeals for the 9th Circuit 2006) (holding that in situation in which “a defendant lacks knowledge about the cache files, and concomitantly lacks access to and control over those files, it is not proper to charge him with possession and control of the child pornography images located in those files, without some other indication of dominion and control over the images. To do so turns abysmal ignorance into knowledge and a less than valetudinarian grasp into dominion and control’).

We find no other evidence in the record to overcome this shortcoming. While the record includes circumstantial evidence indicating [Kamara] downloaded these images, this evidence does nothing to show [he] `knowingly possessed’ the image during the period charged. See U.S. v. Flyer, 633 F.3d 911 (U.S. Court of Appeals for the 9th Circuit 2011) (citing U.S. v. Navrestad, supra, and holding that evidence was legally insufficient to prove knowing possession of child pornography in his computer's unallocated space on or about the date charged in the indictment).

The Government charged a specific, month-long period during which [Kamara] allegedly possessed child pornography. However, they produced no evidence to indicate when the appellant accessed the images found in unallocated space. Accordingly, we find the evidence to be legally insufficient to prove [he] knowingly and wrongfully possessed images depicting child pornography on any devices other than the `G drive’ external hard drive.

U.S. v. Kamara, supra. 

The court concluded its analysis by noting that, regarding the factual sufficiency of the evidence in the case:  “Based on a careful review of the record, we are convinced beyond a reasonable doubt both that [Kamara] knowingly possessed child pornography on the `G drive’ external hard drive and that such possession was of a nature to bring discredit upon the armed forces.”  U.S. v. Kamara, supra. 

Unfortunately for Kamara, the court also found

no reason to alter [Kamara’s] punishment in this case. Setting aside one of the 14 DVDs and the images found in unallocated space does not dramatically alter the sentencing landscape. See U.S. v. Buber, 62 M.J. 476 (U.S. Court of Appeals for the Armed Services 2006). The remaining evidence includes many dozens of videos involving young children engaging in sexual activity.

The nature and gravity of the offenses has not changed. There is no lessening of [Kamara’s] punitive exposure. Applying the analysis set forth in U.S. v. Sales, 22 M.J. 305 (Court of Military Appeals 1986), U.S. v. Moffeit, 63 M.J. 40 (U.S. Court of Appeals for the Armed Forces 2006), and U.S. v. Cook, 48 M.J. 434, 438, (U.S. Court of Appeals for the Armed Forces 1998), we are convinced the members would have imposed the same sentence in the absence of the fourteenth DVD and unallocated space images, and find that the sentence imposed is appropriate.

U.S. v. Kamara, supra. 

The court therefore affirmed the

decision of the United States Army Court of Criminal Appeals is affirmed as to findings and set aside as to sentence. The sentence is set aside. The record is returned to the Judge Advocate General of the Army for a rehearing on sentence.

U.S. v. Kamara, supra.